Miller v. Terramite Corp. ( 2004 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    GLENN ALLEN MILLER,                   
    Plaintiff-Appellant,
    v.
              No. 03-2449
    TERRAMITE CORPORATION, a
    corporation,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Southern District of West Virginia, at Charleston.
    Charles H. Haden II, District Judge.
    (CA-02-1386-2)
    Argued: June 3, 2004
    Decided: October 4, 2004
    Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge,
    and David R. HANSEN, Senior Circuit Judge of the
    United States Court of Appeals for the Eighth Circuit,
    sitting by designation.
    Affirmed by unpublished opinion. Senior Judge Hansen wrote the
    opinion, in which Chief Judge Wilkins and Judge Williams joined.
    COUNSEL
    ARGUED: Anne Elizabeth Shaffer, Charleston, West Virginia, for
    Appellant. Cheryl H. Ledbetter, JACKSON KELLY, P.L.L.C.,
    Charleston, West Virginia, for Appellee. ON BRIEF: Charles M.
    2                    MILLER v. TERRAMITE CORP.
    Surber, Jr., Brian J. Moore, JACKSON KELLY P.L.L.C., Charleston,
    West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    HANSEN, Senior Circuit Judge:
    Glenn Allen Miller brought suit in state court alleging breach of
    contract, wrongful discharge on the basis of age and disability dis-
    crimination, and denial of retirement benefits against his former
    employer, Terramite Corporation (Terramite). Terramite removed the
    case to federal court on ERISA preemption grounds and moved for
    summary judgment. The district court granted summary judgment in
    favor of Terramite. Miller appeals, and we affirm.
    I.
    Because this is an appeal from the grant of summary judgment, we
    construe the evidence in the light most favorable to Miller, the non-
    movant appellant. Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255
    (1986); Mereish v. Walker, 
    359 F.3d 330
    , 332 (4th Cir. 2004). Miller
    began working at Terramite in 1994 as the paint shop foreman in a
    plant that manufactures compact tractor loader back hoes and street
    sweepers. He remained in this position for approximately two years.
    After Miller expressed concern about the possibility of contracting
    isocyanate poisoning from the paint, the company transferred him to
    the assembly hydraulic shop, where he worked for approximately
    three years. The company then transferred him to fill a need in the
    electrical department. Within a year, the company transferred him to
    the hydraulic cylinder department, where he remained until he was
    laid off at age 54 due to a general downsizing of the Terramite work-
    force in July 2001.
    MILLER v. TERRAMITE CORP.                        3
    Miller suffered from some physical and mental impairments. He
    injured a knee at work, but states that the company permitted him to
    sit when a medical restriction required such an accommodation during
    his work in the electrical department. Miller said he was under no
    medical restriction when he was transferred to the hydraulic cylinder
    department. This job required a combination of standing and being
    seated at a desk, and Miller stated that his job was mostly at a desk
    making repair kits. Miller also suffered from diabetes and depression,
    for which he obtained treatment while he was employed with Terra-
    mite. Despite his ailments, he remained able to perform his job, and
    he worked continuously until his layoff.
    Terramite’s owners stated that the layoff decisions were based
    upon skill, seniority, and the recommendations of Jay Phillips. Phil-
    lips’ recommendations were based on his subjective opinion of each
    employee’s skill level as there were no employee performance evalu-
    ations or documentation of employee skills recorded at that time.
    Although a fellow employee, Charles Counts, testified in his deposi-
    tion that Miller had been revered as the unofficial supervisor responsi-
    ble for the cylinder department when the actual supervisor was on
    sick leave, Miller’s skills and experience were limited. Miller had
    assembled repair kits, placed parts in individual bins, and performed
    some electrical work that the company had trained him to do. He had
    some painting experience, but he had expressed his dislike for that
    position by using a fear of illness to facilitate his transfer out of the
    painting department. Phillips recommended Miller’s layoff without
    offering him any other position, and Miller was never recalled.
    Miller asserts that his layoff was motivated by his age and disabil-
    ity. Miller’s layoff occurred approximately one month short of his
    completing seven years with the company, and Miller asserts that Ter-
    ramite knew he planned to retire soon. After laying Miller off, the
    company moved two younger employees into the hydraulic cylinder
    department, Paul Fisher and Chris Strickland. They were both under
    age 40, and each had less seniority than Miller. Phillips stated that he
    retained Fisher and Strickland because they had more skills than Mil-
    ler and that skill levels played a bigger role in his decision than
    seniority. Two other hydraulics department employees laid off at the
    same time as Miller were both under the age of 40.
    4                     MILLER v. TERRAMITE CORP.
    Miller filed a four-count complaint in the circuit court of Kanawha
    County, West Virginia, alleging the following: Count I, breach of
    contract; Count II, wrongful termination on the basis of age discrimi-
    nation in violation of West Virginia law and public policy; Count III,
    wrongful termination on the basis of disability discrimination in vio-
    lation of West Virginia law; and Count IV, that he was wrongfully
    denied 401K and other benefits by being terminated only 45 days
    before he would have been fully vested in Terramite’s retirement
    plan. Terramite then removed this action to federal district court,
    asserting that Count IV stated a federal claim under ERISA.
    On September 3, 2003, Terramite moved for summary judgment.
    On September 18, 2003, Miller opposed summary judgment on all but
    the contract claim, for which he sought dismissal due to his own fail-
    ure to produce a genuine issue of material fact. Miller did not move
    to dismiss his ERISA claim that Terramite wrongfully denied him
    retirement benefits, in spite of the fact that discovery in August had
    revealed that Miller had received all he was due on the retirement
    account. Instead, in his opposition to summary judgment, Miller
    attempted to alter his ERISA argument, asserting that the claim for
    retirement benefits included a claim that Terramite discriminated
    against him with regard to the employee medical benefits plan
    because of the increased expenses he incurred to treat his diabetes and
    depression.
    Over a month later, on Thursday, October 30, 2003, Miller sought
    to voluntarily dismiss the ERISA claim and to remand the entire
    action to state court. Two business days later, the district court
    granted summary judgment in favor of Terramite, treating the unop-
    posed motion to dismiss the contract claim as a motion to amend
    under Rule 15 of the Federal Rules of Civil Procedure and noting that
    Rule 15 was the proper vehicle to accomplish a partial dismissal. The
    court granted the motion and dismissed the contract claim. The dis-
    trict court denied Miller’s request for voluntary dismissal of the
    ERISA claim and for remand of the case to state court, "because it is
    untimely and would waste judicial resources." (J.A. at 191 n.2.) The
    district court then concluded that Miller had failed to raise a question
    of fact on the ERISA claim. Specifically, the court found no evidence
    that Terramite intended to deny Miller any employee benefits through
    the layoff and no evidence that Terramite had any information about
    MILLER v. TERRAMITE CORP.                         5
    Miller’s medical costs. The district court also concluded that the
    undisputed evidence raised no inference of either age or disability dis-
    crimination under the West Virginia Human Rights Act. Miller
    appeals.
    II.
    A.
    Miller first challenges the district court’s decision to deny his last-
    minute motion to voluntarily dismiss the ERISA claim and to remand
    the case to state court. Miller asserts on appeal that a Rule 41(a)(2)
    voluntary dismissal should have been granted because, "while not
    expressly stating so" (Appellant’s Br. at 16), he intended to move for
    a dismissal of the ERISA claim with prejudice, and he asserts that a
    dismissal with prejudice should be freely given. Miller also contends
    that the district court abused its discretion by not dismissing the
    ERISA claim as it dismissed the contract claim, which the district
    court construed as a Rule 15 motion to amend.
    We find no abuse of discretion, regardless of whether it is con-
    strued as an attempt to dismiss the action under Rule 41(a)(2) or as
    a motion to amend the pleading under Rule 15. A district court may
    dismiss an action with prejudice under Fed. R. Civ. P. 41(a)(2).
    Choice Hotels Int’l, Inc. v. Goodwin and Boone, 
    11 F.3d 469
    , 471
    (4th Cir. 1993). In deciding a Rule 41(a) motion, a district court
    should consider factors such as "the opposing party’s effort and
    expense in preparing for trial, excessive delay and lack of diligence
    on the part of the movant, and insufficient explanation of the need for
    a voluntary dismissal," as well as "the present stage of litigation."
    Phillips USA, Inc. v. Allflex USA, Inc., 
    77 F.3d 354
    , 358 (10th Cir.
    1996) (internal citations and quotation marks omitted).
    Under Rule 15, the district court may grant a motion to amend the
    complaint "when justice so requires." Fed. R. Civ. P. 15(a). The dis-
    trict court does not abuse its discretion by denying leave to amend
    where there is "undue delay, bad faith, or dilatory motive on the part
    of the movant, repeated failure to cure deficiencies by amendments
    previously allowed, undue prejudice to the opposing party . . . , futil-
    ity of amendment, etc." Foman v. Davis, 
    371 U.S. 178
    , 182 (1962);
    6                     MILLER v. TERRAMITE CORP.
    see also Deasy v. Hill, 
    833 F.2d 38
    , 40 (4th Cir. 1987), cert. denied,
    
    485 U.S. 977
     (1988). These considerations are similar to those articu-
    lated above in the Rule 41(a) context. Because Rule 41(a)(2) provides
    for the dismissal of "actions" rather than claims, it can be argued that
    Rule 15 is technically the proper vehicle to accomplish a partial dis-
    missal of a single claim, but similar standards govern the exercise of
    discretion under either rule. See 6 Charles Alan Wright, Arthur R.
    Miller & Mary Kay Kane, Federal Practice and Procedure § 1479
    (2d ed. 1990); see also Deasy, 
    833 F.2d at 40
     (noting that the "dispo-
    sition of a motion to amend is within the sound discretion of the dis-
    trict court." ).
    Under either rule, the district court did not abuse its discretion in
    concluding that Miller’s attempt to dismiss the ERISA claim was
    untimely and would waste judicial resources. The motion came well
    after discovery had closed. Discovery was completed on July 30,
    2003, and it revealed that the plaintiff had received all the retirement
    benefits to which he was entitled; thus leaving no evidentiary basis
    for his ERISA claim. This fact was emphasized in Terramite’s motion
    for summary judgment, but Miller did not seek dismissal in light of
    that evidence nor did he assert conflicting facts. Instead, he attempted
    to alter his argument, claiming discrimination under ERISA due to his
    excessive medical costs — an argument that also lacked evidentiary
    support — and he waited over a month longer to seek dismissal of the
    ERISA claim altogether. By then, the district court had invested a
    great deal of time preparing a dispositive order and considering the
    merits of the claim. The dispositive order was filed only two business
    days after the motion to dismiss the ERISA claim. See Davis v. USX
    Corp., 
    819 F.2d 1270
    , 1274 (4th Cir. 1987) (noting parenthetically
    that "denial of voluntary dismissal is appropriate where summary
    judgment is imminent") (citing Pace v. S. Express Agency, 
    409 F.2d 331
    , 334 (7th Cir. 1969)). Miller offered the district court no valid
    reason why his request for dismissal of the ERISA claim was not
    asserted in a more timely fashion. For the first time, he asserts in this
    appeal that the delay occurred because his own expert needed time to
    assess the validity of the discovery material, and he also asserts that
    "[w]hile not expressly stating so," he was asking the district court to
    dismiss the claim with prejudice (Appellant’s Br. at 16.). The district
    court was not given the opportunity to address these assertions, and
    we will not entertain them for the first time on appeal absent a show-
    MILLER v. TERRAMITE CORP.                         7
    ing of exceptional circumstances. See Williams v. Prof’l Transp. Inc.,
    
    294 F.3d 607
    , 614 (4th Cir. 2002) ("Issues raised for the first time on
    appeal are generally not considered absent exceptional circum-
    stances.").
    B.
    Miller asserts that even if the district court properly disposed of the
    ERISA claim on its merits in summary judgment, it should have
    remanded the remaining state law claims rather than exercising sup-
    plemental jurisdiction over them. A district court "shall have supple-
    mental jurisdiction over all other" related claims in any civil action
    where the district court has original jurisdiction. 
    28 U.S.C. § 1367
     (a)
    (2000). When the district court has dismissed the claims over which
    it has original jurisdiction, it "may decline to exercise supplemental
    jurisdiction," 
    id.
     § 1367(c)(3). We review the district court’s actions
    under § 1367 for an abuse of discretion. Shanaghan v. Cahill, 
    58 F.3d 106
    , 110 (4th Cir. 1995) (noting that district courts enjoy "wide lati-
    tude" in determining whether or not to retain jurisdiction). "Among
    the factors that inform this discretionary determination are conve-
    nience and fairness to the parties, the existence of any underlying
    issues of federal policy, comity, and considerations of judicial econ-
    omy." Id.; Hinson v. Norwest Fin. S. C., Inc., 
    239 F.3d 611
    , 617 (4th
    Cir. 2001).
    Miller asserts that the district court abused its discretion by not
    articulating its reasons for exercising supplemental jurisdiction. We
    find no abuse of discretion. Although the district court did not write
    a separate section dealing with the reasons supporting its decision to
    retain jurisdiction, such reasons are evident from the court’s expres-
    sion that Miller’s request to dismiss the ERISA claim and to remand
    the entire case to state court would waste judicial resources. (J.A. at
    191 n.2.) This reasoning supports the court’s exercise of discretion in
    this instance.
    C.
    Finally, Miller asserts that the district court erred in granting sum-
    mary judgment on the merits of his state law age and disability dis-
    crimination claims. We review the district court’s grant of summary
    8                     MILLER v. TERRAMITE CORP.
    judgment de novo, viewing the facts and all reasonable inferences in
    the light most favorable to the nonmoving party. Matsushita Elec.
    Indus. Co. v. Zenith Radio Corp., 
    475 U.S. 574
    , 587 (1986); Ander-
    son, 
    477 U.S. at 255
    . Summary judgment is appropriate "if the plead-
    ings, depositions, answers to interrogatories, and admissions on file,
    together with the affidavits, if any, show that there is no genuine issue
    as to any material fact and that the moving party is entitled to a judg-
    ment as a matter of law." Fed. R. Civ. P. 56(c).
    To set forth a prima facie case of age discrimination in West Vir-
    ginia, a plaintiff must demonstrate (1) that he is a member of the pro-
    tected class (which, in this case, consists of workers over age 40), (2)
    that the employer made an adverse employment decision as to him,
    and (3) but for the plaintiff’s age, the employer would not have made
    the adverse decision. Waddell v. John Q. Hammons Hotel, Inc., 
    572 S.E.2d 925
    , 927 (W.Va. 2002); Conway v. E. Assoc. Coal Corp., 
    358 S.E.2d 423
    , 429 (W.Va. 1986). "What is required of the plaintiff is
    to show some evidence which would sufficiently link the employer’s
    decision and the plaintiff’s status as a member of the protected class
    so as to give rise to an inference that the employment decision was
    based on an illegal discriminatory criterion." Id. at 429-30; Smith v.
    Sears, Roebuck and Co., 
    516 S.E.2d 275
    , 279 (W.Va. 1999) (quoting
    Conway, 358 S.E.2d at 429-30). Thus, to determine whether a claim
    should survive a summary judgment motion, we must determine
    whether the plaintiff has adduced sufficient facts to create an infer-
    ence that he experienced discrimination. Conrad v. Ara Szabo, 
    480 S.E.2d 801
    , 810 (W.Va. 1996).
    Miller met the first two prima facie case requirements to state an
    age discrimination claim because he was over age 40, and Terramite
    laid him off work. As to the third requirement, the district court con-
    cluded that there was no evidence to support an inference of discrimi-
    nation. This conclusion is supported by the undisputed evidence.
    Miller cannot demonstrate an inference of age discrimination from
    his assertion that Terramite attempted to prevent his retirement bene-
    fits from vesting, because the undisputed evidence demonstrates that
    his only benefit had already fully vested, and he had collected it in
    its entirety after his layoff. The district court also cited Hazen Paper
    Co. v. Biggins, 
    507 U.S. 604
    , 611 (1993), for the proposition that ter-
    MILLER v. TERRAMITE CORP.                         9
    minating an employee close in time to the vesting of a pension does
    not automatically give rise to an inference of age discrimination. Mil-
    ler asserts that the district court erred by applying federal law rather
    than West Virginia law, but he points to no West Virginia case con-
    tradicting the principle enunciated in Hazen Paper. Moreover, con-
    trary to Miller’s assertion, the district court did cite West Virginia
    case law in its analysis of the age discrimination claim, and the court
    did not commit error by citing federal cases as supporting authority
    in this context.
    Likewise, Miller cannot demonstrate an inference of age discrimi-
    nation from the mere fact that younger workers with less seniority
    were retained. The district court noted that the two workers who
    moved into the cylinder department after Miller was laid off "knew
    how to perform every job in the department and could assemble the
    entire hydraulic cylinder, jobs Miller could not do." (J.A. at 197.)
    Miller does not contest this statement of fact. Additionally, the district
    court stated that the evidence showed that these two workers "could
    perform almost any job at Terramite while Miller’s job skills were
    limited." (Id.) The record supports the district court’s conclusion that
    there was no inference of age discrimination because the company
    retained younger employees who were able to perform more jobs
    within the company than the plaintiff.
    Furthermore, the statistical data indicated that 40 workers were laid
    off in July 2001 and only 9 workers (22.5 percent of those laid off)
    were over the age of 40. In Miller’s department, 3 were laid off —
    Miller was over 40, but the other two were not. Statistics further show
    that after the layoff the average age of employees increased from 36.5
    to 36.7 years old. The workforce data does not give rise to an infer-
    ence of discrimination.
    As to Miller’s disability claim, he asserts that the district court
    erred by not considering his knee injury. We respectfully disagree.
    The district court concluded that Miller had not demonstrated that
    either his diabetes or depression affected a major life activity, but the
    court refused to consider the knee condition because Miller had not
    raised this as a disabling condition until his response in opposition to
    the motion for summary judgment. The district court correctly con-
    cluded that this was untimely and that the opposing party would be
    10                    MILLER v. TERRAMITE CORP.
    prejudiced by inadequate notice if this claim were considered in oppo-
    sition to the summary judgment motion. See Conley v. Gibson, 
    355 U.S. 41
    , 47 (1957) (noting the complaint must give "fair notice of
    what the plaintiff’s claim is and the grounds upon which it rests").
    Even if the claim had been properly pled or added by amendment
    to the complaint, summary judgment would be proper. To state a
    claim of discriminatory discharge on the basis of a disability, the
    plaintiff must demonstrate, among other things, that he or she is a per-
    son with a disability as defined in the state law. Hosaflook v. Consol.
    Coal Co., 
    497 S.E.2d 174
    , 179 (W.Va. 1997).* The West Virginia
    Human Rights Act defines disability as "[a] mental or physical
    impairment which substantially limits one or more of such person’s
    major life activities. The term ‘major life activities’ includes functions
    such as caring for one’s self, performing manual tasks, walking, see-
    ing, hearing, speaking, breathing, learning, and working." W.Va.
    Code § 5-11-3 (m). A disability may also be found where the person
    has a record of such impairment or is regarded as having such an
    impairment. Id.
    In Miller’s deposition testimony he states that when he was work-
    ing in the electrical department, his doctor requested that he stay off
    his feet as much as possible. Terramite provided Miller with a chair
    so he could perform his tasks in a seated position. Later that year,
    however, when he was transferred to the hydraulics cylinder depart-
    ment, Miller states that his job mostly permitted him to sit, but he was
    no longer under a restriction from his doctor. (J.A. at 267.) He testi-
    fied that there were no other light duty issues that came up as a result
    of medical restrictions. (Id.) Miller’s own testimony thus indicates
    that he was under no medical restriction at the time of his layoff, and
    he provides no testimony to indicate that the knee condition substan-
    tially limited any major life activity. Construing the record in the light
    most favorable to Miller, he failed to state a claim that he was a per-
    son with a disability within the meaning of state law.
    *In Hosaflook, the court uses the word "handicap." The West Virginia
    Human Rights Act now uses the term "disability," but the courts have
    clearly indicated that "[t]he terms ‘handicap’ and ‘disability’ are inter-
    changeable." Stone v. St. Joseph’s Hosp. of Parkersburg, 
    538 S.E.2d 389
    , 398 n.12 (W.Va. 2000).
    MILLER v. TERRAMITE CORP.                  11
    III.
    Accordingly, we affirm the judgment of the district court.
    AFFIRMED